Sparf & Hansen v. U S, 156 U.S. 51 (1895)

Mr. Justice BREWER, dissenting.

I concur in the views expressed in the opinion of the court as to the 
separate functions of court and jury, and in the judgment of affirmance 
against Hansen; but I do not concur in holding that the trial court erred in 
admitting evidence of confessions, or in the judgment of reversal as to 
Sparf.

The facts, briefly stated, are these: There was a single indictment, 
charging the defendants jointly with the crime of murder. There was a single 
case on trial, -- a case in which the government was the party on one side 
and the two defendants the party on the other. These two defendants were 
represented by the same counsel. Three witnesses testified to confessions of 
Hansen. Counsel for defendants objected to each of these confessions. These 
objections were in the same form. They purported to be for the defendants 
jointly, and not separately for each. Two of the confessions were given in 
the presence of Sparf, and in admitting them it is not pretended that there 
was any error. One was made in the absence of Sparf, and it is held that the 
court erred in overruling the objection to it. The objection was that the 
testimony offered was 'irrelevant, immaterial, and incompetent, and upon the 
ground that any statement made by Hansen was not, and could not be, 
voluntary.' It will be noticed that this objection was both general and 
special; the special ground -- that which would naturally arrest the 
attention of the court -- being that the confession was not voluntary. This 
ground of objection, it is admitted, was not well taken. If there was any 
error it was in overruling the general objection that the testimony was 
irrelevant, immaterial, and incompetent. But it is conceded that this 
confession was material, relevant, and competent, was properly admitted in 
evidence on the single trial then pending, and properly heard by the jury. 
The real burden of complaint is that, when the court admitted the testimony, 
it ought to have instructed the jury that it was evidence only against 
Hansen, and not against Sparf. But, in common fairness, ought not the 
attention of the court to have been called to the difference, and a ruling 
had upon that difference? Cannot parties present a joint objection to 
testimony, and rest their case upon such objection? Is it the duty of the 
court to consider a matter which is not called to its attention, and make a 
ruling which it is not asked to make? Is it not the duty of the court to be 
impartial between the government and the defendant, and decide simply the 
questions which each party presents? Is it its duty to watch over the 
interests of either party, and to put into the mouth of counsel an objection 
which he does not make? To my mind, such a doctrine is both novel and 
dangerous. I do not question the proposition that a confession made by one 
of two defendants in the absence of the other is to be considered by the 
jury only as against the one making it, and I admit that, if a separate 
objection had been made by Sparf, the court would have been called upon to 
formally sustain such objection, and instruct the jury that such testimony 
was to be considered by them only as against Hansen. If an instruction had 
been asked, as is the proper way, the attention of the court would have been 
directed to the matter, and an adverse ruling would have rightly presented 
the error which is now relied upon. But I need not refer to the oft-repeated 
decisions of this court that there is no error in failing to give an 
instruction which is not asked, unless it be one of those which a statute in 
terms requires the court to give, and there is no pretense of any such 
statute. Lewis v. Lee Co., 66 Ala. 480, 489, was decided in accordance with 
the views which I have expressed. The court in that case say:

     'The witness Frazier's testimony as to his conversation with the
     defendant Lewis regarding the condition of his accounts as
     county treasurer was properly admitted in evidence. It was
     certainly good as an admission against him, and could not be
     excluded because not admissible against the sureties, who were
     his codefendants in the action. The practice on this point is well
     settled in this state that the only remedy of a codefendant in such
     a case is to request a charge from the court to the jury, limiting
     the operation of the evidence, so as to confine its influence only
     to the defendant against whom it is admissible.' 

So in State v. Brite, 73 N. C. 26, 28, a similar ruling was made, the
court saying:

     'The defendant's first exception is that his honor allowed
     Culpepper, a codefendant, to introduce witnesses to prove his
     (Brite's) declarations while in jail, which tended to exonerate
     Culpepper.' 

     'While these declarations are not evidence, either for or against
     Culpepper, being, as to him, res inter alios acta, and made by
     one not under oath and subject to cross-examination, yet they
     are clearly admissible against Brite, and it makes no difference
     whether they were called forth by the state, or by Culpepper,
     without objection, or rather with the sanction of the state.' 

I have been able to find no case laying down a contrary doctrine. In 
Insurance Co. v. Hillmon, 145 U.S. 285, 12 Sup. Ct. 909, each defendant 
separately for itself presented the objection, and each, therefore, had the 
right to avail itself of the ruling made by the court. Indeed, I think this 
will be found to be the first case in which it has been held that, while the 
court properly allowed testimony to go to the jury on the trial of a case, 
the judgment has been reversed because it failed to call the attention of 
the jury to the bearing of that evidence upon the different parties when 
such parties never asked the court to so instruct the jury.

I am authorized to say that Mr. Justice BROWN concurs in these
views.

(Jan. 21, 1895.)


